Straughn v. Delta Airlines ( 2001 )

United States Court of Appeals
For the First Circuit
No. 00-1549
CLAIRE A. STRAUGHN,
Plaintiff, Appellant,
v.
DELTA AIR LINES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
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appellee Delta Air Lines, Inc.
May 17, 2001
CYR, Senior Circuit Judge. Plaintiff Claire A. Straughn
urges us to vacate several summary judgment rulings which ultimately
prompted the district court to dismiss her claims against Delta
Airlines, Inc., alleging gender discrimination under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2001, et seq., race
discrimination under 42 U.S.C. § 1981, and breach of contract, wrongful
termination, and defamation under New Hampshire law. Lastly, she seeks
to set aside the summary judgment entered against her on Delta’s
counterclaim for reimbursement of certain workers’ compensation
benefits inadvertently disbursed to her in the first instance. We
affirm the district court judgment in all respects.
I
BACKGROUND
Straughn began her employment with Delta in October 1983, as
a reservations agent. In January 1995, she became a sales
representative in its Boston Marketing Office, responsible for an area
which includes Vermont and Western New Hampshire. She was one of five
women, as well as the only African American, among the fourteen sales
representatives in the Boston Marketing Office. Her immediate
supervisor was Zone Manager Helen Meinhold, who reported directly to
Lou Giglio, District Marketing Manager.
On January 19, 1996, while on a sales call for Delta,
Straughn fell and broke her wrist, which disabled her from work for
3
most of the ensuing period through March of 1997. Although she
returned to work during this period, on each occasion she was unable to
continue for more than a few days.
Under the applicable Delta employment policy, employees
injured on the job were entitled to thirteen weeks’ accident leave, as
well as accumulated sick leave, vacation time and full salary.
Nevertheless, these employees were obligated to reimburse Delta for all
workers’ compensation benefits received while absent on accident leave,
pursuant to the following Delta policy statement:
Personnel who receive weekly benefits for
occupational injury or illness under the
provisions of applicable Worker's (sic)
Compensation laws must reimburse the Company
in an amount equal to the sum of all such
weekly benefits received for the period
during which the Company pays the employee's
wages, in whole or in part, under accident
leave, sick leave, and disability benefit
policies.
ESIS, the third-party administrator of Delta’s self-insured
workers’ compensation plan, makes an independent determination as to
whether an employee is eligible for workers’ compensation benefits,
based on the controlling workers' compensation laws and the
circumstances surrounding the work-related injury. ESIS disburses
workers' compensation benefits directly to the eligible Delta
employee, notwithstanding the fact that the employee continues
4
to receive full salary from Delta pursuant to its accident leave
policy. While the pertinent policy statement, supra, obligates
an employee absent on accident leave to reimburse Delta for all
workers' compensation benefits received from ESIS while on full
salary, once an employee's accident leave, accumulated sick
leave and vacation time have been exhausted the employee is
removed from the Delta payroll and thereafter retains whatever
workers' compensation benefits are received from ESIS.
Thus, Straughn received three forms of remuneration
while on accident leave. First, during the fourteen-month
period she was unable to work, she received her regular Delta
salary. Second, from January 25 through July 4, 1996, she
received $11,608.86 in workers’ compensation benefits through
ESIS. Third, she received periodic checks from ESIS as
reimbursement for medical expenses directly related to her
injury, including medical bills, prescription costs, and travel
expenses to and from medical appointments.1 Notwithstanding her
obligation to remit the $11,608.86 in workers’ compensation
1 Although the parties have not addressed the matter, these
reimbursements appear to have been made in accordance with Mass.
Gen. Laws ch. 152, §§ 30 & 45, which require insurers to furnish
injured employees with "adequate and reasonable health care
services, and medicines if needed, together with the expenses
necessarily incidental to such services . . . ," see id. § 30,
as well as reimbursement for "reasonable travel expense
incidental" to physician examinations requested by the insurer
or the insured, see id. § 45.
5
benefits received from ESIS during her absence from work,
Straughn failed to do so.
Meanwhile, Delta inadvertently continued to disburse
Straughn’s full salary from July 5, 1996, until her eventual
return to work in March, 1997, even though her entitlement to
full salary had expired on July 4, 1996, pursuant to the
accident leave policy. Furthermore, the administrative
employees responsible for disbursing Straughn’s salary were
neither aware that she had received and retained workers’
compensation benefits, along with her regular Delta salary, from
January 25 through July 4, 1996, nor that her Delta salary
continued to be disbursed some nine months beyond the time she
was entitled to receive it.2 In March of 1997, upon discovering
its error, Delta conducted a thorough review of all amounts
disbursed to Straughn since her injury.
Shortly after returning to work in April of 1997,
Straughn was asked by Giglio, on two separate occasions, whether
she had received workers’ compensation benefits in addition to
2
The confusion appears to be explainable, at least in part,
by the fact that during the time Straughn received workers’
compensation benefits through ESIS, she coordinated her receipt
of the benefits solely with Catherine Ackles, an employee of
ESIS, and did not deal directly with any Delta employee.
Nonetheless, Delta acknowledges, as its error, the breakdown in
its communications with ESIS. Thus, Delta has not sought to
impose responsibility upon Straughn for the receipt of these
overpayments in the first instance.
6
her salary while absent on accident leave.3 On each occasion,
Straughn denied receiving workers’ compensation benefits,
explaining instead that she had received money which she used
for meals and other expenses relating to her injury.4
At her deposition, however, Straughn recalled these
conversations with Giglio as follows:
A. [Giglio] said to me . . . "By the way,
did you receive any money from
compensation?"
Q. And what did you answer?
A. I told him, no. The money that
compensation gave me I used to order
out my meals, to help take care of
myself, because I was not able to do
anything. I had no support system . .
. .
Q. Could you have said . . . "No, they
gave me money for food, transportation
and expenses directly related to my
accident"?
3Upon returning to work, Straughn was asked by Giglio to
sign and backdate certain personnel forms relating to her
injury. Apparently, these forms were to have been completed at
the time of her injury, rather than when she returned to work.
Straughn refused to do so.
4 Although neither party clearly defines the contours of
ESIS's obligation to reimburse Delta employees for certain
injury-related expenses, each has assumed that though travel
expenses and certain medical costs are reimbursable by ESIS,
food and other personal costs are not. Their assumptions appear
to be based on the obligations imposed by Massachusetts law.
See Mass. Gen. Laws ch. 152, §§ 30, 45. There is no record
evidence that any Delta or ESIS policy required that Delta
employees be reimbursed for food and similar personal costs in
these circumstances.
7
A. I could have said something like that.
(Emphasis added).
After Straughn repeatedly denied having received
workers’ compensation benefits — an assertion flatly
contradicted by the business records maintained by both Delta
and ESIS — Giglio relayed her responses to Michelle McColly,
Senior Analyst in the Delta Personnel Department. 5 McColly
instructed Giglio to approach Straughn again and obtain her
written response. At the same time, Giglio was instructed to
suspend Straughn pending further investigation.
5Straughn contends on appeal that her responses to these
inquiries were mixed and ambiguous, rather than direct denials.
Thus, she argues, Giglio should have sought clarification from
her first, rather than simply reporting to his superiors that
she had denied receiving workers' compensation benefits. The
district court succinctly attended to that contention as
follows:
Straughn's seemingly odd (and ostensibly
ambiguous) 'no, but yes' response to
Giglio's inquiry about her receipt of
workers' compensation benefits makes perfect
sense in context and is, in fact,
unambiguous. She denied receiving workers'
compensation benefits from ESIS (which she
was obligated to sign over to Delta), but
acknowledged that ESIS had honored her
periodic requests for reimbursement of
medical, travel, and related expenses. That
response simply did not jibe with the
records maintained by Delta and its agent,
ESIS.
District Court Opinion, at 11.
8
Following the conversation with McColly, Giglio
inquired of Straughn in the presence of two Delta supervisors —
Helen Meinhold and Tom Keating — regarding whether she had
received workers’ compensation benefits while on accident leave.
Straughn responded that she had not, stating once again that she
had simply received checks to compensate her for costs related
to medical treatment, transportation, and meals.
Giglio thereupon suspended Straughn, as instructed, and
requested that she reduce her statement to writing. Prior to
providing Giglio with her written response, however, Straughn
consulted with an attorney who had been representing her in a
related tort action against the owner of the premises at which
her injury occurred.
Helen Meinhold later recounted Straughn’s responses to
Giglio’s inquiry as follows:
A. [Giglio] asked [Straughn] whether she
had received any additional monies in
addition to her paycheck.
Q. And what was her response?
A. No; that she only had gotten
reimbursement of some medical expenses.
Subsequently, Straughn recalled the interrogation by
Giglio:
I was called into Lou [Giglio's] office and
asked if I had received money from
9
compensation to which I initially responded
no, but went on to explain to him as I had
in the past that I had received money from
compensation to help with my expenses such
as food, medicine, transportation, etc.
(Emphasis added).
The written response Straughn thereafter submitted to
Giglio explained as follows:
When I spoke to my attorney she advised me
[that] until she had an opportunity to look
into this[,] do not advise of comp money.
When I spoke to [Catherine Ackles] again she
reiterated [the] above info. Also was
advised by attorney & [Catherine Ackles] all
will be settled. When Lou [Giglio] asked me
if I received comp, all I thought of was
attorney advise [sic].
(Emphasis added). Thus, the written response provided by
Straughn admits that she intentionally misled Delta — albeit
ostensibly on the advice of counsel — regarding her receipt of
workers’ compensation benefits while continuing to receive full
salary from Delta.
Consequently, on May 8, 1997, Giglio recommended that
Straughn be terminated from her employment due to dishonesty.
Following further review, McColly recommended that Straughn be
required to remit the $11,608.86 in workers’ compensation
benefits wrongfully retained, and either resign or face
discharge.
Thereafter, acting on these recommendations, Director
10
of Equal Opportunity Richard Ealey terminated Straughn's
employment due to her dishonesty in responding to the repeated
inquiries regarding her receipt of workers’ compensation
benefits. Director Ealey, himself an African American,
explained that it was Straughn's dishonesty which distinguished
her conduct from that of other employees who had not
spontaneously reimbursed Delta after receiving workers’
compensation benefits in similar circumstances.
Straughn commenced an internal grievance procedure with
the Delta administrative appeals board. In due course, the
board, comprised of McColly and another member, recommended to
Director Ealey that Straughn be reinstated. The appeals board
neither assigned reasons for its recommendation nor prescribed
conditions for the reinstatement, except that Straughn reimburse
Delta for all workers’ compensation benefits wrongfully
retained.
At that point Giglio offered Straughn employment as a
Sales Staff Assistant, a new position with no direct sales
responsibilities, at an annual salary of $39,696 rather than the
$46,462 salary she formerly received. After Straughn accepted
the offer, Delta placed a "final warning" letter in her
personnel file: the most severe disciplinary action short of
11
outright termination.6
Following her reinstatement, Straughn brought suit in
the United States District Court for the District of New
Hampshire. Delta answered and counterclaimed for the $11,608.86
in workers’ compensation benefits retained by Straughn, then
moved for summary judgment on all claims, as well as its
counterclaim, contending that Straughn had been discharged for
a legitimate, nondiscriminatory reason: i.e., her persistent
lack of candor in responding to legitimate inquiries regarding
her wrongful retention of workers’ compensation benefits.
After determining that Straughn had presented no
competent evidence that Delta had tendered a pretextual reason
for terminating her employment, the district court granted
summary judgment against Straughn on the gender and race
6 The “final warning” letter stated, in relevant part:
Even if you did not intend to keep these
overpayments, your failure to monitor these
payments and to fully advise Delta of these
overpayments causes us great concern with
respect to your ability to be a reliable and
effective Sales Representative. As you
know, that position entails great autonomy
and responsibility, including the handling
of company resources, and we do not believe
you should hold such a position at this time
considering the way you handled these
overpayments. Consequently, we have decided
to reinstate your employment as a Sales
Staff Assistant.
12
discrimination claims, as well as all state-law claims. At the
same time, the district court directed summary judgment for
Delta on its counterclaim.
II
DISCUSSION
A. The Title VII and Section 1981 Claims.
1. The Standard of Review and Burden Shifting Framework.
Summary judgment rulings are reviewed de novo, see
Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 672 (1st Cir.
1996), after considering the record evidence "in the light most
favorable to, and drawing all reasonable inferences in favor of,
the nonmoving party." Feliciano De La Cruz v. El Conquistador
Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000). The
summary judgment ruling is to be upheld provided "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). Moreover, "[e]ven in employment discrimination cases
where elusive concepts such as motive or intent are at issue,
this standard compels summary judgment if the non-moving party
rests merely upon conclusory allegations, improbable inferences,
and unsupported speculation." Feliciano, 218 F.3d at 5 (quoting
13
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990)) (internal quotation marks omitted) (emphasis added).
Where, as here, no direct evidence of discrimination
was proffered by the plaintiff, we apply the McDonnell Douglas -
Burdine - Hicks burden-shifting analysis to the Title VII and
Section 1981 claims. See Conward v. Cambridge Sch. Comm., 171
F.3d 12, 19 (1st Cir. 1999). Under that familiar regimen the
plaintiff "must carry the initial burden . . . of establishing
a prima facie case of . . . discrimination." McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973).
In employment discrimination cases, the plaintiff must
make a prima facie
. . . showing that: (1) [she] is a member of
a protected class; (2) [her] employer took
an adverse employment action against [her];
(3) [she] was qualified for the employment
[s]he held; and (4) [her] position remained
open or was filled by a person whose
qualifications were similar to [hers].
Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 19 (1st
Cir. 1999) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506 (1993); McDonnell Douglas, 411 U.S. at 802; Conward, 171
F.3d at 19)).
We shall assume, without deciding, that Straughn
proffered sufficient competent evidence to establish prima facie
claims based on race and gender discrimination. At that point
14
it became necessary for Delta to articulate “a legitimate,
non-discriminatory reason for its adverse employment action[,]"
id. (citing McDonnell Douglas, 411 U.S. at 802; Shorette v. Rite
Aid of Maine, Inc., 155 F.3d 8, 12 (1st Cir. 1998)), by
identifying enough admissible evidence to “support a [rational]
finding that unlawful discrimination was not the cause of the
employment action." Feliciano, 218 F.3d at 5-6 (quoting Hicks,
509 U.S. at 507) (internal quotation marks omitted).
Delta proffered competent evidence that Straughn was
dismissed due to her dishonesty in repeatedly attempting to
mislead a supervisor regarding her wrongful retention of
workers’ compensation benefits in violation of Delta policy.
Richard Ealey, the Delta official ultimately responsible for the
dismissal action, attested that though there had been other
instances in which Delta employees had not spontaneously
surrendered workers’ compensation checks in similar
circumstances, he was "not aware of any situation where the
individual denied [having received such checks] when
questioned."
Where, as here, the employer proffers “a
nondiscriminatory reason for its action, the burden shifts back
to the plaintiff to show that the reason . . . was 'a coverup'
for a 'discriminatory decision.'" Id. at 6 (quoting McDonnell
15
Douglas, 411 U.S. at 805). At that point, Straughn’s "burden of
producing evidence to rebut the stated reason for [Delta’s]
employment action merge[d] with the ultimate burden of
persuading the court that she [was] the victim of intentional
discrimination." Id. (quoting Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981)) (internal quotation marks
omitted). Straughn failed to generate a genuine issue of
material fact regarding whether she was discharged due to either
her race or gender.
2. Pretext and Discriminatory Animus.
At the ultimate stage in the burden-shifting analysis,
it would have been necessary that Straughn persuade the
factfinder that she experienced unlawful discrimination at the
hands of her employer, see Thomas v. Eastman Kodak Co., 183 F.3d
38, 56 (1st Cir. 1999), cert. denied, --- U.S. ----, 120 S. Ct.
1174 (2000) (citations omitted), by "present[ing] sufficient
evidence to show both that the employer's articulated reason for
[the discharge was] a pretext and that the true reason [was]
discriminatory[,]" id. (emphasis added) (internal quotation
marks and citations omitted). E.g., Fernandes v. Costa Bros.
Masonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999) (“[T]he
plaintiff must show both that the employer’s 'proffered reason
is a sham, and that discriminatory animus sparked [its]
16
actions.'") (quoting Conward, 171 F.3d at 19). The “same
evidence used to show pretext can support a finding of
discriminatory animus if it enables a factfinder reasonably to
infer that unlawful discrimination was a determinative factor in
the adverse employment action." Feliciano, 218 F.3d at 6.
Thus, we must determine whether the competent evidence
proffered by Straughn, together with all reasonable inferences
which may be drawn in her favor, raised “a genuine issue of fact
as to whether [her] termination, [and/or the demotion following
her rehire, were] motivated by [either race or gender]
discrimination." Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 54 (1st Cir. 2000) (citations and quotations
omitted). The summary judgment must be set aside if the record
includes sufficient competent evidence from which a reasonable
jury “could (although it need not) infer that the employer's
claimed reasons for terminating [the] employment were pretextual
and that the decision was the result of discriminatory animus."
Dominguez-Cruz v. Shuttle Caribe, Inc., 202 F.3d 424, 431 (1st
Cir. 2000). Finally, we must “exercise particular caution
before [sustaining] summary judgment[s] for employers on such
issues as pretext, motive, and intent." Santiago-Ramos, 217
F.3d at 54 (citing Hodgens v. General Dynamics Corp., 144 F.3d
151, 167 (1st Cir. 1998)).
17
Straughn insists that the rationale Delta ascribes for
discharging her — the alleged efforts to conceal her wrongful
retention of workers’ compensation benefits — was pretextual and
its actual intent was discriminatory. The record does not bear
out her contention.
It is undisputed that Director of Equal Opportunity
Richard Ealey, after reviewing the dismissal recommendations by
Michelle McColly and Giglio, ultimately was responsible for
terminating Straughn's employment. Yet there is no record
evidence, nor has Straughn contended, that either Ealey or
McColly harbored any race-or-gender-based animus. Instead,
Straughn maintains that Giglio, her intermediate supervisor, was
in a position to influence Ealey, the ultimate decisionmaker;
thus, she argues, Giglio indirectly brought about her wrongful
termination for discriminatory reasons by presenting the
ultimate decisionmaker with a pretextual justification.
Straughn contends in particular that Giglio
intentionally inquired in an ambiguous manner regarding her
receipt of workers’ compensation benefits, then mischaracterized
her responses, as categorical rather than qualified, when
reporting to Ealey and McColly. She claims that Giglio's
discriminatory intentions are evidenced (i) by workplace
utterances reflecting bias against African Americans and (ii) by
18
relatively undesirable work assignments, unfair criticisms, and
the withholding of various perquisites and incentives available
to other Delta sales representatives.
Straughn also claims that the decision to rehire her,
following her internal appeal, demonstrates that Delta
management ultimately realized that Giglio's rendition of her
responses had been contrived, whereas her actual responses were
accurate. Similarly, she insists that Giglio unilaterally
demoted her to a position entailing reduced responsibilities and
salary even though Delta had recommended her unconditional
reinstatement. Finally, Straughn argues that the discipline
initially imposed upon her — outright discharge — differed
materially from that meted out to another Delta employee who had
made similar statements to Giglio in the past. We discuss these
contentions in turn.
a. The Allegedly Discriminatory Utterances
and Related Workplace Mistreatment
In order to sustain her burden of persuasion on
pretext, Straughn needed to demonstrate either that her
dismissal was (i) "more likely motivated” by discrimination than
by the explanation proffered by Delta, or (ii) the proffered
“explanation [was] unworthy of credence" in circumstances where
the suspect denial, taken together with other facts, suggests
19
such a motivation. Burdine, 450 U.S. at 256 (citing McDonnell
Douglas, 411 U.S. at 804-05); see also Fite v. Digital Equipment
Corp., 232 F.3d 3, 6-7 (1st Cir. 2000). The burden of
persuasion on pretext may be met, inter alia, by showing “that
discriminatory comments were made by the key decisionmaker or
those in a position to influence the decisionmaker." Santiago-
Ramos, 217 F.3d at 55 (discriminatory comments by direct
supervisor, along with similar comments by key decisionmaker,
constitute evidence of pretext where direct supervisor was
consulted by key supervisor during decisionmaking process)
(emphasis added).
(i) The “Southern Black” Accent
Straughn testified on deposition that Giglio frequently
used an offensive "southern black" accent at meetings attended
by her and other Delta employees. Although Giglio denies the
charge, it must be credited at summary judgment. See id.(citing DeNovellis v. Shalala, 124 F.3d 298, 308 (1st Cir.
1997)).
For present purposes, we assume arguendo that there are
circumstances in which use of an offensive “southern black”
workplace accent, by a superior in a position to influence the
key decisionmaker, would constitute probative evidence that the
proffered explanation for disciplining an employee was
20
pretextual. Cf. id. (Discriminatory comments, by key
decisionmaker and another person in position to influence
decisionmaker, "could lead a jury to conclude that [the
employer's] proffered reasons for firing [plaintiff] were
actually a pretext for discrimination."). As we have
acknowledged, “in combination with other evidence[,]” see
McMillan v. Massachusetts Soc’y for Prev. of Cruelty to Animals,
140 F.3d 288, 300 (1st Cir. 1998), cert. denied, 525 U.S. 1104(1999), so-called “stray remarks” may permit a jury reasonably
to determine that an employer was motivated by a discriminatory
intent, id. But though such “stray remarks” may be material to
the pretext inquiry, “their probativeness is circumscribed if
they were made in a situation temporally remote from the date of
the employment decision, or . . . were not related to the
employment decision in question, or were made by
nondecisionmakers." Id. at 301 (emphasis added) (citations
omitted). See, e.g., Santiago-Ramos, 217 F.3d at 55 (remarks
within two weeks of discharge probative of pretext); Fernandes,
199 F.3d at 583 (remarks at time of employment action probative
of pretext); cf. McMillan, 140 F.3d at 301 (remoteness
heightened where at least one of three remarks occurred several
years before challenged employment action).
Although statements directly related to the challenged
21
employment action may be highly probative in the pretext
inquiry, see Santiago-Ramos, 217 F.3d at 55; Fernandes, 199 F.3d
at 583, mere generalized “stray remarks,” arguably probative of
bias against a protected class, normally are not probative of
pretext absent some discernible evidentiary basis for assessing
their temporal and contextual relevance. Compare McMillan, 140
F.3d at 301 (workplace remarks by male department head at time
remote from incident in dispute — regarding physical traits and
sexual activities of female co-workers, but bearing no direct
relationship to employment — held not probative of pretext where
challenged decision involved lower salaries for female
employees), with Fernandes, 199 F.3d at 583 (comments by
decisionmaker — including "I don't need minorities”; “I don't
need residents on this job”; "I don't have to hire you locals or
Cape Verdean people” — were not mere "stray remarks" where
challenged employment action concerned refusal to rehire dark-
skinned residents of Cape Verdean descent). Accordingly, even
if we were to assume that the assertedly offensive workplace
“accent” is somehow suggestive of racial bias,7 it would not be
significantly probative of pretext absent some discernible
indication that its communicative content, if any, materially
7As concerns the gender-based discrimination claim, however,
we can discern no relevance whatsoever in the “southern black”
accent evidence.
22
erodes the stated rationale for the challenged employment
action.
Straughn proffered no evidence that Giglio ever used
the nondescript “southern black” accent either during or in
relation to the challenged employment action. Nor is there
competent evidence from which a rational factfinder might fairly
infer that the communicative import of the nondescript accent
pertained to employment matters, let alone to Straughn or her
employment. Indeed, Straughn herself has never intimated either
a rationale or a circumstantial predicate for reasonably
inferring that the “southern black” accent amounted to anything
other than insensitive banter. Thus, Straughn’s naked ipse
dixit was insufficient to generate a genuine issue of material
fact.
Accordingly, we conclude that the “southern black”
accent allegedly used on occasion by Giglio, without more, is
not probative of pretext on the part of Delta, given (i) the
absence of any discernible contextual or temporal relationship
between the discharge decision and the workplace accent used by
Giglio, (ii) the demonstrably self-sufficient basis for the
management recommendation by Richard Ealey to discharge Straughn
due to her persistent work-related dishonesty, and (iii) the
distinctly subordinate role Giglio played in the dismissal
23
decision.
(ii) The Disparate Workplace Treatment
Straughn claims that Giglio singled her out for
inferior work assignments, unfairly criticized her performance,
and withheld various perquisites and inducements accorded
similarly situated sales representatives. The district court
determined that the evidence Straughn tendered to demonstrate
pretext was insufficient in light of the countervailing evidence
that Delta management reasonably believed that Straughn
repeatedly lied to her superiors regarding her receipt and
wrongful retention of workers' compensation benefits while
absent on accident leave and receiving full salary. See
District Court Opinion, at 24. 8 After evaluating Straughn’s
differential treatment claim against the “totality of the
evidence . . . 'as part of an aggregate package of proof[,]'"
Fernandes, 199 F.3d at 581 (citation omitted), we conclude that
the district court ruling is founded on adequate record support.
8The district court noted:
Straughn's complaint[s] that Giglio
chastised her for being late and for driving
excessive miles, and that she was denied
reimbursement for donuts she says she
purchased for a customer, arguably support
her discrimination claim to some degree,
though the persuasive value of such evidence
in [sic] not substantial.
District Court Opinion, at 24. We agree.
24
Although pretext may be established with evidence of
"differential treatment in the workplace[,]" id. (quoting
Mesnick v. General Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991),
cert. denied, 504 U.S. 985 (1992)) (internal quotation marks
omitted), Straughn failed to sustain her evidentiary burden in
relation to the claim that she was singled out for inferior work
assignments. The record discloses that the Vermont and Western
New Hampshire sales territory, to which Straughn initially was
assigned, historically has generated lower revenues than all but
one other sales territory within the Boston Marketing Office
area and accordingly has been selected in the past as a training
territory for relatively inexperienced sales representatives.
Nor did Straughn tender evidence that there was any
normal time frame within which sales representatives in training
customarily were transferred to more lucrative sales
territories. Similarly, she proffered no evidence regarding any
criteria utilized by Delta in determining when newer sales
representatives were considered eligible for transfer to more
desirable sales territories.
On the other hand, the record plainly discloses that
a white male sales representative drew the Maine sales
territory, which is comparable to the Vermont-Western New
Hampshire sales territory in terms of the driving distances and
25
relatively low sales revenues. Yet Straughn proffered no
evidence regarding the tenure of her counterpart in the Maine
sales territory. Finally, there is no record evidence that
Straughn’s experience or tenure differed in any material respect
from that of her predecessors in the Vermont-Western New
Hampshire sales territory.
Since Straughn tendered no competent evidence that her
initial assignment as a sales representative differed materially
from that of other relatively new sales representatives in the
Boston Marketing Office, summary judgment was appropriate. See
id.; Conward, 171 F.3d at 20 (“Where . . . the plaintiff in a
disparate treatment race [or gender] discrimination case offers
comparative evidence . . . to raise an inference of racial [or
gender-based] discrimination, [she] must provide a suitable
provenance for the evidence by showing that others similarly
situated . . . in all relevant respects were treated differently
by the employer.”) (emphasis added).
(iii) Miscellaneous Evidence of Pretext
Similarly, Straughn tendered insufficient other
evidence to generate a trialworthy issue on pretext. Instead,
she simply pointed to evidence that Giglio reprimanded her for
tardiness, driving excessive miles, visiting too few sales
accounts, and failing to generate adequate “shuttle” flight
26
ticket sales. She maintains that these criticisms were
unjustified, given the undisputed evidence that (i) sales
representatives in the Boston Marketing Office were not required
to report to work at any particular hour; (ii) her sales
territory necessitated more driving, as it is one of the two
largest in geographic area; and (iii) it normally generates
fewer “shuttle” ticket sales.
Straughn relies almost exclusively upon the Thomas
case, which held that where poor work performance is the stated
reason for discharging an employee, pretext may be established
by demonstrating that the evaluation process itself was tainted
by racial bias and that the plaintiff’s "abilities and
qualifications were equal or superior to employees who were
retained." Thomas, 183 F.3d at 65 (quoting Goldman v. First
Nat'l Bank of Boston, 985 F.2d 1113, 1119 (1st Cir. 1993))
(internal quotation marks omitted). The Thomas case is
inapposite.
There is no record evidence that Straughn’s discharge
was related in any way to work performance. For that matter,
there is no evidence that Straughn ever received a “poor” work
evaluation. See id. at 62-63. On the contrary, following the
only documented review of her work performance with the Boston
Marketing Office, Straughn received a “high” rating from none
27
other than Giglio and Meinhold. Consequently, the present
contention provides no support for the claim that Straughn was
subjected to "differential treatment in the workplace.”
Fernandes, 199 F.3d at 581.
Straughn also testified that various privileges
available to other sales representatives were withheld from her,
including authorization to: (a) provide clients with free
promotional flight tickets, (b) obtain reimbursement for meals
while entertaining clients, and (c) work on a part-time basis
from a “virtual” home office. Nevertheless, she failed to
proffer competent evidence that she and these other sales
representatives were “similarly situated” in all or even most
relevant respects. See Conward, 171 F.3d at 20.
(a) Free Promotional Flight Tickets
Straughn asserts, in conclusory fashion, that all sales
representatives in her office were permitted, at their
discretion, to give promotional flight tickets to their
respective clients, whereas she "rarely" was allowed to do so.
She makes no attempt to approximate the number of occasions on
which promotional flight tickets were made available to her or
to other Delta sales representatives. Instead, she focuses on
a single instance in which Helen Meinhold directed her to
recover a promotional flight ticket which Straughn had made
28
available to the spouse of a client. It is undisputed that
Delta policy contemplates that these promotional flight tickets
are to be made available to Delta clients, not their spouses.
The record also indicates that the episode referred to by
Straughn occurred during the first six months of her tenure as
a sales representative. Yet Straughn presented no competent
evidence that she and these other sales representatives were
similarly situated, either in regard to tenure, experience, or
the numbers of clients served.
(b) Client Entertainment
Straughn asserts that some sales representatives were
reimbursed for meal costs incurred while entertaining Delta
clients. The one person she names — Jane Martin — began work
with the Boston Marketing Office two weeks before Straughn.
Other than similar starting dates, however, Straughn tendered no
evidence that she and Martin were “similarly situated,” most
notably in regard to the particular characteristics of their
respective sales territories and clienteles. Moreover, Straughn
admitted that she was never denied reimbursement. Instead, she
states that she was reprimanded by Meinhold on one occasion for
purchasing donuts for the personnel in a “couple of offices” and
warned not to do so again. See also note 8 supra.
(c) The “Virtual Home Office” Privilege
29
Straughn testified that all other sales representatives
in the Boston Marketing Office were granted the “virtual home
office” privilege. See Mesnick, 950 F.2d at 824 (noting that
evidence of “differential treatment in the workplace” supports
pretext claim). Yet Straughn points to no evidence that she and
these other sales representatives were similarly situated.
Competent proof that the plaintiff was denied
privileges and opportunities available to similarly situated
employees may constitute probative evidence that an adverse
employment action was motivated by discriminatory animus. See
Thomas, 183 F.3d at 63 (evidence that supervisors prevented
minority employee from making important presentation and
withheld "appropriate developmental opportunities" and computer
training, all of which were accorded non-minority employees,
supports disparate treatment claim). Straughn testified on
deposition that she made at least three requests to work from a
virtual home office. The record also reflects that some sales
representatives were permitted to work from a “virtual” home
office. Yet Richard Ealey denied Straughn permission to do so
following her extended absence from work, since her doctor had
advised that, though able to work, Straughn was not yet well
enough to drive an automobile — hence unable to service clients,
the primary responsibility of her position.
30
As concerns Straughn’s previous requests to work from
a “virtual” home office, one was denied by Meinhold and several
by Giglio. The record reflects that her first request to Giglio
was made within six months of her hiring. Straughn presented no
evidence that other new sales representatives were accorded the
privilege so early in their tenure. With regard to the other
requests which Giglio denied, she points to no evidence (i) that
she was “similarly situated” to any sales representative who was
accorded the privilege, or (ii) that she met Delta’s criteria
for evaluating such requests. Instead, she simply asserts in
conclusory fashion that everyone else was permitted to work
part-time from a “virtual” home office. Thus, she failed to
present competent evidence that the proffered reason for the
challenged employment action was pretextual. See Fernandes, 199
F.2d at 581; Conward, 171 F.3d at 20; Mesnick, 950 F.2d at 824.
Moreover, given the overwhelming weight of the evidence
that the proffered reason for the dismissal action was both
sound and sufficient, the tenuous disparate treatment evidence
presented by Straughn was plainly insufficient to enable a
reasonable factfinder to conclude that Giglio had fabricated the
report about Straughn’s prevarications relating to her wrongful
retention of the workers’ compensation benefits.9 Nothing more
9The other instances Straughn cites in relation to her
disparate treatment claim lack adequate evidentiary support as
31
is exigible.
b. The Alleged Distortions of Straughn’s
Responses
Straughn likewise failed to generate a trialworthy
issue in relation to her claim that Giglio mischaracterized her
responses to his inquiries regarding her receipt and retention
of workers’ compensation benefits. As the district court
appropriately noted, Straughn's deposition testimony, affidavit,
and written statement abundantly demonstrate her utter lack of
candor in responding to these legitimate inquiries.
Upon initial inquiry by Giglio, as to whether she had
received "any money from compensation," Straughn responded in
the negative, then added that she had received money "to order
out my meals [and] to help take care of myself . . . ." On the
second occasion, in the presence of two other supervisors,
Straughn again denied receiving workers’ compensation benefits,
well. With regard to the authority to provide clients with
promotional flight tickets, she points to no evidence that
Giglio was involved in any way. Instead, Straughn herself
testified on deposition that it was Meinhold who restricted her
authority in this regard.
Straughn acknowledged that some, but not all, Delta sales
representatives were reimbursed for client meal costs.
Furthermore, she neither presented evidence that she was not
reimbursed, nor that she was similarly situated to those
employees who were regularly reimbursed. Thus, she failed to
generate a rational inference that any race-or-gender based bias
harbored by Giglio accounted in any way for the alleged
rejections of her requests for reimbursement. See Conward, 171
F.3d at 20.
32
while allowing that she had received reimbursements for certain
expenses. These responses were not only materially false, but
knowingly made, in that Straughn was well aware that she had
received and retained workers’ compensation benefits meant to
compensate her for lost salary, while continuing to receive full
salary from Delta.
Straughn also received other checks from ESIS,
representing reimbursements for various expenses incurred in
connection with her job-related injury, such as medical
services, prescription drugs, and travel expenses incurred in
connection with medical appointments. Although food was not an
expense reimbursed by ESIS, it was among those Straughn listed
when Giglio asked whether she had received money for "expenses."
Curiously, Straughn now attempts to characterize her response to
Giglio as an admission that she had indeed received both
workers’ compensation benefits and reimbursements for expenses
from ESIS. She reasons that since she listed food — an expense
not eligible for reimbursement from ESIS — her direct response
to Giglio that she had never received workers’ compensation
benefits somehow acknowledged that she had indeed received
workers’ compensation benefits.
She also attempts to rationalize her negative response
to Giglio as simply a reference “to the promised workers’
33
compensation settlement, not weekly benefits . . . .” Since she
has not elaborated, we are left to speculate about the precise
details.
Thus, essentially Straughn sought — indeed still seeks
— to rationalize the obvious inaccuracies in her response to
Giglio, which she attributes to inartful language, as including
an accurate response to a question she was never asked. In
contrast, Giglio and Delta management rationally assessed her
persistent refusals to acknowledge her receipt and wrongful
retention of workers’ compensation benefits as attempts to
conceal the truth.
Undeterred, Straughn continues to defend her responses
as technically accurate in the sense that she did tell Giglio
that she had received food money, which could only have derived
from workers’ compensation benefits since food is not an expense
related to medical treatment. This artful contention is belied
as well, however, by her own written submission following her
suspension by Delta:
When I spoke to my attorney[,] she advised
me . . . do not advise of comp money. . . .
When [Giglio] asked me if I received comp,
all I thought of was attorney advise [sic].
(Emphasis added).
Thus, Straughn admitted to an attempt to conceal the
fact that she had received workers’ compensation benefits while
34
on accident leave from her employment with Delta, albeit on the
advice of counsel. At a minimum, then, the summary judgment
record unambiguously established that Straughn plainly
understood that she had received workers’ compensation benefits
while on full salary, yet set out to conceal that fact from
Delta.
No less importantly, at this point in the burden-
shifting analysis the principal focus must be upon whether
McColly and Ealey, the responsible Delta decisionmakers,
reasonably believed that Straughn lied, rather than whether she
actually lied. "In assessing pretext, [our] 'focus must be on
the perception of the decisionmaker,' that is, whether the
employer believed its stated reason to be credible." Goldman v.
First Nat’l Bank of Boston, 985 F.2d 1113, 1118 (1st Cir. 1993)
(quoting Mesnick, 950 F.2d at 824; Gray v. New England Tel. &
Tel. Co., 792 F.2d 251, 256 (1st Cir. 1986)). As Straughn has
never claimed that either McColly or Ealey harbored a gender-
based or race-based bias, but rather that they were misled by
Giglio's allegedly wrongful recommendation that her employment
be terminated, in these particular circumstances it is the
reasonableness of Giglio's belief alone which is controlling.
The record plainly demonstrates that Giglio reasonably
regarded Straughn’s responses to his inquiries as wrongful
35
attempts to conceal what he well knew to be so, based on Delta’s
business records; viz., that Straughn had received and
wrongfully retained workers’ compensation benefits from ESIS,
while continuing to receive her full Delta salary on accident
leave. Giglio accordingly recommended that Straughn be
discharged, due to her persistent dishonesty, pursuant to
longstanding Delta policy.
In these circumstances, no rational trier of fact could
conclude that Giglio did not reasonably believe that Straughn
had responded dishonestly when repeatedly confronted with the
documented fact that she had received workers’ compensation
benefits, as well as full salary, while on accident leave.
Thus, Straughn utterly failed to generate a trialworthy issue of
material fact as to whether Giglio reasonably believed that she
had attempted to mislead him regarding her receipt and retention
of the workers’ compensation benefits to which she was not
entitled.10 A fortiori, she failed to generate a trialworthy
10
Nevertheless, Straughn now insists that Giglio "set [her]
up and then reported her," by asking whether she had received
workers’ compensation benefits, rather than simply telling her
that he knew she had, then presenting her with various repayment
options. We can discern no animus in these attempts to verify,
firsthand with Straughn, the documented information that Giglio
had received. As the district court appropriately noted, in
these circumstances Straughn cannot —
legitimately complain that Giglio knew the
answer to the question about her receipt of
workers' compensation benefits before he
36
issue as to whether McColly and Ealey reasonably accepted
Giglio’s version of the relevant events.
c. The Rehiring Decision As Evidence of Pretext
Pretext may be established "'by showing weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons'
such that a factfinder could 'infer that the employer did not
act for the asserted non-discriminatory reasons.'" Santiago-
Ramos, 217 F.3d at 56 (quoting Hodgens, 144 F.3d at 168). For
present purposes, we shall assume, without deciding, that there
may be circumstances in which the decision to rehire a
discharged employee constitutes competent evidence of pretext,
at least insofar as the rehiring plainly undermined the
proffered justification for the original discharge. Cf.
Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 252 (8th Cir.
1995) (evidence of employee's competence, as demonstrated by
employer's decision to rehire, would have constituted evidence
of pretext had incompetence been the proffered ground for
original discharge). Even so, the summary judgment record came
up well short of the required evidentiary support for Straughn’s
asked it. Put simply, an employer has a
legitimate right to expect that its
employees will respond in a truthful, non-
evasive manner to its questions . . . .
District Court Opinion, at 26, n. 6.
37
contention that the decision to rehire her in a different
capacity reflected an abandonment of Delta’s original position
that she had misled Giglio in the first instance.
Straughn insists that the decision to rehire her, after
her internal appeal, indicates that upon considering her version
of the encounter with Giglio, Delta management must have
realized that Giglio had misled McColly and Ealey regarding
Straughn's responses to Giglio’s inquiries. McColly, one of the
two Delta supervisors who participated in the internal appeal,
explained the rationale for recommending Straughn’s
reinstatement as follows:
[D]espite the fact that I . . . believed
that [Straughn] had still done something
wrong, and furthermore that she knew she had
done something wrong, I did believe, after
meeting with her, that there was a
considerable amount of confusion in the
administration of the workers’ compensation,
or that it could have been handled better.
And Ms. Straughn did have a good record, and
several years with the company, so we
decided that we should recommend . . .
another chance.
(Emphasis added).
Asked to clarify what she meant by "confusion," McColly
stated that she had neither concluded that Straughn was confused
by Giglio's questions, nor that Straughn had retained the
workers’ compensation payments unwittingly. Instead, McColly
explained: "I still believe that Ms. Straughn very likely knew
38
that she had not been entitled to the payments,” emphasizing
that the appeals process had in no sense caused her to "question
the story that Lou Giglio had been telling . . . [and] that
ultimately led to [Straughn's] termination."
Plainly, then, the recommendation to rehire Straughn
was made notwithstanding McColly’s earnest belief that it was
very likely that Straughn knowingly had done “something wrong.”
Furthermore, McColly stated that though the workers’
compensation disbursements should have been managed more
efficiently and that some actual confusion had indeed resulted,
Delta nonetheless had been justified in discharging Straughn due
to her repeated attempts to mislead.
Thus, there is no evidentiary support for the
contention that the appeals board hearing prompted McColly to
conclude either that Giglio had misrepresented Straughn's
responses or that Straughn had been wrongfully discharged.
Instead, the record is clear that McColly recommended a "second
chance" based on Straughn’s overall employment record,
notwithstanding ample grounds for the dismissal. Accordingly,
not only does the decision to rehire Straughn provide no support
for the claim that the proffered reason for discharging her was
“unworthy of credence,” Burdine, 450 U.S. at 256, it strongly
evidences an absence of any forbidden animus on the part of
39
Delta.
Next, we turn to the contention that Straughn’s
demotion to a position entailing reduced compensation and
responsibilities, notwithstanding the unconditional
reinstatement recommended by Delta management, demonstrates that
Giglio harbored discriminatory motives in recommending her
discharge in the first instance. The record reflects that
McColly transmitted a memorandum to Director of Equal
Opportunity Richard Ealey summarizing a discussion which had
taken place during the appeals process, as follows: "Mr.
Stevenson and I recommend [Straughn’s] request for reinstatement
be granted and that she be required to reimburse Delta for the
overpayment."
Subsequently, McColly explained that her recommendation
to Ealey was simply that Straughn be reinstated, whereas the
particulars relating to her reinstatement, i.e., position and
salary, were left to others. Furthermore, Giglio denied any
role in determining that Straughn should be demoted after her
rehiring and Straughn neither identified nor presented any
evidence to the contrary. Thus, Straughn’s rehiring and
placement in a position entailing reduced salary and
responsibilities provide no support for the claim that the
stated reason for her discharge was pretextual.
40
d. The Other Disparate Treatment Evidence
Straughn next contends that the discipline Delta
administered to her was disproportionately severe in comparison
with that meted out to one John Higgins, a white-male sales
representative who had worked under Giglio in the Boston
Marketing Office and supposedly engaged in comparable conduct.
The record reflects that Higgins was disciplined for falsifying
weekly sales reports relating to time spent with clients. Yet,
it also plainly establishes that Higgins readily acknowledged
the misrepresentations upon inquiry by Giglio. Consequently,
Delta simply relegated Higgins to a less desirable sales
territory and placed a "letter of concern" in his personnel
file.
Evidence that an employer administered disparate
treatment to similarly situated employees may be competent proof
that the explanation given for the challenged employment action
was pretextual, see Conward, 171 F.3d at 19, provided the
plaintiff-employee can make a preliminary showing “that others
similarly situated . . . in all relevant respects were treated
[more advantageously] by the employer." Id. at 20 (citing
Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir.
1996)) (emphasis added) ("Reasonableness is the touchstone:
while the plaintiff's case and the comparison cases that [s]he
41
advances need not be perfect replicas, they must closely
resemble one another in respect to relevant facts and
circumstances.").
The district court correctly concluded that Straughn
and Higgins were not similarly situated in certain relevant
respects. For one thing, their wrongful conduct differed
materially. Although each misled a supervisor, Straughn stood
to realize a substantial monetary benefit through her deception
— more than $11,000 — whereas Higgins did not. Yet more
importantly, unlike Straughn, Higgins forthrightly acknowledged
his misconduct when first confronted, whereas Straughn
repeatedly attempted to deceive Giglio in an effort to conceal
the fact that she had retained workers’ compensation benefits to
which she was not entitled. These "differentiating or
mitigating circumstances" unquestionably undermined Straughn’s
attempt to demonstrate that her conduct was similar to Higgins’s
in all material respects. See id. at 21. Consequently, her
disparate treatment claim was fatally flawed.
As Straughn failed to generate a genuine issue of
material fact regarding either pretext or disparate treatment,
summary judgment was entirely proper on her gender and race
discrimination claims.
B. The State Law Claims
42
1. Wrongful Discharge
Straughn contends that the district court erred in
ruling that no trialworthy issue of material fact remained
regarding her wrongful discharge claim under New Hampshire law.
Straughn alleged that Delta wrongfully (i) discharged her for
refusing to backdate certain personnel forms at Giglio’s request
upon her return to work in April 1997, (ii) then demoted her for
resorting to the internal appeals process.
In order to prevail on a wrongful termination claim
under New Hampshire law, “a plaintiff must establish two
elements: one, that the employer terminated the employment out
of bad faith, malice, or retaliation; and two, that . . . the
employment [was terminated] because the employee performed acts
which public policy would encourage or . . . refused to perform
acts which public policy would condemn.” Short v. School Admin.
Unit No. 16, 136 N.H. 76, 84, 612 A.2d 364, 369 (1992) (citing
Cloutier v. A & P Tea Co., Inc., 121 N.H. 915, 921-22, 436 A.2d
1140, 1143-44 (1981)). Bad faith or malice on the part of an
employer may be established under New Hampshire law where (i) an
employee is discharged for pursuing policies condoned by the
employer, (ii) the record does not support the stated reason for
the discharge, or (iii) disparate treatment was administered to
a similarly situated employee. See Cloutier, 121 N.H. at
43
921-22, 436 A.2d at 1143-44.
Upon returning to work after her injury, Straughn was
asked by Giglio to complete and backdate certain disability
forms to correspond with the date of her injury, more than a
year earlier. See supra note 3. Straughn declined. Shortly
thereafter her employment was terminated by McColly, on Giglio’s
recommendation.
As the summary judgment record plainly demonstrates,
see supra Section II.A, Delta discharged Straughn based on its
well-founded belief that she had not responded honestly
regarding her receipt and retention of workers’ compensation
benefits to which she was not entitled. In these circumstances,
the mere temporal proximity between (i) the occasion on which
Straughn refused to backdate the disability forms and (ii) the
later recommendation by Giglio that her employment be terminated
pales to insignificance against the overwhelming weight of the
evidence underpinning the plainly legitimate rationale for the
discharge decision by Delta. Accordingly, we need not address
the public policy issue Straughn endeavors to raise.
Furthermore, there is simply no validity to the claim
that Straughn was demoted by Delta for resorting to its internal
appeals process. Following her discharge on June 16, 1997, and
the ensuing internal appeal, Straughn was rehired by Delta in a
44
position which carried reduced compensation and entailed less
responsibility. Once again Straughn attempts to elide the
obvious, however, by disregarding the indisputable reality that
Delta thereby voluntarily conferred a substantial benefit upon
her, notwithstanding her wrongful conduct. Thus, no rational
factfinder reasonably could conclude that Straughn was
wrongfully demoted for resorting to the internal appeals
process.
2. Breach of Contract
Straughn faults the dismissal of her breach of contract
claim as well, which was based on the spurious thesis that she
was dismissed as a result of Delta's failure to monitor her
receipt of workers’ compensation benefits as provided in the
Delta Corporate Safety Handbook:
The supervisor should establish a protocol
for communication with the injured employee,
the medical provider and the workers’
compensation administrator. . . . This
communication will ensure that Delta
management is apprised of the injured
employee's diagnosis, status, and prognosis
for return to work.
Straughn claims that the district court incorrectly determined
that (i) she could not establish a breach of contract, since she
was not an intended beneficiary of the Delta policy statement,
and (ii) no damages resulted from the alleged breach in any
event.
45
Although the district court did question whether
Straughn was an intended beneficiary of the above-quoted policy,
its decision did not rest on that basis. Instead, the district
court assumed arguendo that the Delta policy statement creates
an enforceable legal obligation that Delta monitor the workers’
compensation benefits received by its employees. 11 As the
district court decision in no sense rested on the basis
suggested by Straughn, her present argument fails.
The alternative argument is flawed as well. Assuming,
as did the district court, that Delta was obligated, yet failed,
to monitor her receipt of workers’ compensation benefits,
Straughn cannot demonstrate that any harm flowing from the
failure to monitor was proximately related to her discharge.
"Damages are available only if the harm was a reasonably
foreseeable result at the time the parties entered into the
contract." Independent Mech. Contractors, Inc., v. Gordon T.
Burke & Sons, Inc., 138 N.H. 110, 114, 635 A.2d 487, 489 (1993)
11
The New Hampshire Supreme Court has held that "an
employer's unilateral promulgation to present at-will employees
of a statement of intent to pay and provide such economic
benefits may be recognized under New Hampshire law as an offer
to modify their existing relationship by means of a unilateral
contract, which offer is subject to such an employee's
acceptance by continued performance of his duties." Panto v.
Moore Bus. Forms, Inc., 130 N.H. 730, 731, 547 A.2d 260, 261-62
(1988) (Souter, J.). Thus, statements in employee handbooks
regarding benefits may give rise to enforceable contracts under
New Hampshire law. See id. at 734-35.
46
("[A] plaintiff may satisfy this requirement by specifically
proving that the defendant 'had reason to know the facts' at the
time the parties contracted and to foresee that the injury would
be a probable consequence of a breach."). Any breach of the
obligation to monitor Straughn’s receipt of workers’
compensation benefits resulted in an overpayment of benefits,
rather than termination of her employment.
As previously discussed at considerable length, see
supra Section II.A., the termination of Straughn’s employment
directly resulted from her attempts to conceal — through
dishonest responses to the inquiries initiated by Delta — her
retention of the inadvertently disbursed workers’ compensation
benefits. Consequently, summary judgment was entirely proper,
since the decision to terminate Straughn’s employment was in no
sense precipitated by any failure on the part of Delta to
monitor her receipt of workers’ compensation benefits, as
distinguished from her wrongful retention of those benefits and
her prevarications concerning their retention.
3. Defamation
The remaining state-law claim alleged that Straughn was
defamed by Giglio following her reinstatement. Straughn
testified on deposition that two coworkers told her that Giglio
said she had done something "very, very bad." This claim
47
likewise fails, since there can be no actionable defamation
unless the offending statement was false. See Nash v. Keene
Publ'g Corp., 127 N.H. 214, 219, 498 A.2d 348, 351 (1985)
(citing Duchesnaye v. Munro Enter., Inc., 125 N.H. 244, 252, 480
A.2d 123, 127 (1984)). "To establish defamation, there must be
evidence that a defendant failed to exercise reasonable care in
publishing, without a valid privilege, a false and defamatory
statement of fact about the plaintiff to a third party."
Independent Mech. Contractors, Inc., 138 N.H. at 118, 635 A.2d
at 492 (emphasis added) (citations omitted). As previously
discussed, see supra Section II.A, the record plainly
demonstrates that Straughn attempted to mislead her supervisors
in an effort to conceal the fact that she had retained more than
$11,000 in workers’ compensation benefits to which she was not
entitled. Accordingly, summary judgment was entirely proper.
C. The Delta Counterclaim
The district court granted summary judgment on the
Delta counterclaim for $11,608.86, representing the total
workers’ compensation benefits improperly retained by Straughn.
Straughn insists that summary judgment was inappropriate since
Delta failed to establish the amount due.
Delta established its entitlement to $11,608.86, as
claimed, representing the workers’ compensation benefits
48
mistakenly disbursed to Straughn between January 25 and July 4,
1996, while she remained on full salary with Delta. Donna
Crews, Delta Payroll Administrator, attested that she had
calculated the mistaken overpayments to Straughn at not less
than $11,608.86.12 Straughn cites no record evidence to the
contrary and Delta is entitled to reimbursement in that amount
pursuant to its “accident leave” policy.
Accordingly, the summary judgment entered on Delta’s
counterclaim was entirely proper.
III
CONCLUSION
The district court judgment is affirmed in all
respects. Costs are assessed against appellant.
SO ORDERED.
12
Once her accident and sick leave benefits had been
exhausted, Straughn received full salary from July 1996 through
March 1997, when she returned to full-time work. These salary
payments totaled approximately $20,000 in additional
overpayments to Straughn. Nevertheless, at oral argument,
counsel explained that though Delta was entitled to
reimbursement in the larger amount, it intended to pursue only
its $11,608.86 counterclaim for the period January 25 through
July 4, 1996, since its own oversight had enabled Straughn to
continue to receive full salary after July 4, 1996.
49